- (1.) HEARD learned counsel appearing for the petitioner and learned counsel appearing for the opposite party no.2.
(2.) IT appears that upon filing an application by opposite party no.2 before the Sub-divisional Magistrate, Barhi (Hazaribagh) a proceeding under Section 144 of the Code of Criminal Proceeding was initiated over the land bearing plot no.1070 appertaining to khata nos.57 and 17 measuring an area of .08 acres. Subsequently, that proceeding was converted into a proceeding under Section 145 of the Code of Criminal Proceeding. Thereupon an application was filed by the opposite party no.2 for attaching the property under Section 146 of the Code of Criminal Proceeding whereupon an order was passed on 2.2.2011 whereby the land in question was attached under Section 146(1) of the Code of Criminal Procedure. That order of attachment was challenged before the revisional court in Cr. Rev. No.61 of 2011. While the matter was pending, an amendment petition was filed by the petitioner whereby prayer was made to set aside that order under which 144 proceeding had been converted into a proceeding under Section 145 of the Code of Criminal Procedure. The revisional court dismissed the revision application, vide its order dated 10.6.2011 which is under challenge.
(3.) LEARNED counsel appearing for the petitioner submitted that when the revision application was preferred before the revisional court, an order passed under Section 145 of the Code of Criminal Procedure was also challenged on the ground that opposite party no.2 has brought Title Suit No.155 of 2009 for declaration of right, title and interest over the suit property and in that title suit, prayer was also made for recovery of possession and, therefore, while the matter relating to possession was under adjudication before the civil court, the revisional court should have set aside not only the order passed under Section 146(1) of the Code of Criminal proceeding but also the order under which proceeding had been converted into a proceeding under Section 145 of the Code of Criminal Procedure, in view of the decision rendered in a case of Amresh Tiwari vs. Lalta Prasad Dubey and others [2001(1) JLJR 106 (SC)] but the learned revisional court did not consider the matter in right perspective and hence, the order passed by the Revisional court and also by the Magistrate are fit to be set aside.;